A reader has asked the Property Poser expert for his input on the proposed amendments to the Rental Housing Act and the potentially negative implications for landlords.
As a landlord, he is concerned that the Act will be negatively biased towards him, especially since contravening the provisions of the Act would constitute a criminal offence.
The reader is particularly concerned about the provisions relating to the payment of monthly rental by the tenant and the fact that the landlord is required to provide receipts for this.
He also mentions the obligation on the landlord to invest the tenant’s deposit in an interest-bearing account for the benefit of the tenant.
Of further concern is the obligation on the landlord to arrange inspections and the like, with failure to do so constituting a transgression of the provisions of the Act.
Sean Radue of Radue Attorneys in Port Elizabeth says that, by and large, any transgression of a statute constitutes an offence and carries a possible sanction of a punishment of some type, possibly imprisonment or a fine.
“The Act has, for some time, regulated many of the aspects of the relationship between landlord and tenant, including the concerns highlighted by the reader.”
Radue says the very nature of a lease is that the landlord “loses”, albeit temporarily, some of his rights to a rented property in favour of receiving rental for it.
“The Act then places certain obligations on him with regard to that relationship to prevent the abuse of the rights of the tenant.”
The landlord does, of course, have certain rights, he says, but admittedly, on a casual reading of the Act and its amendments, it could appear to favour the tenant.
“But this is where the purpose of the Act should be considered. The objectives of the Act are also being amended accordingly.”
Radue says this includes providing “for the facilitation of sound relations between tenants and landlords”.
“Another objective is to ‘provide for legal mechanisms to protect the rights of tenants and landlords against illegal actions by the other party by affording speedy means of redress at minimum cost to the parties’.”
According to him, the housing minister’s role will include monitoring and assessing the impact of the application of this Act on landlords and tenants, and more speci?cally the impact on poor and vulnerable tenants.
“It could thus be inferred that, historically, landlords’ conduct has prejudiced the tenants, as the Act now seeks to ensure that this is not the case in future.”
Radue says the amendment to the Act seeks to ensure that rental relationships function better by means of statutory regulation.
“The introduction of the concept of the ‘habitability’ of a rented property lends some credence to this view.”
It should also be remembered that legislation is intended to apply generally in most instances, he says.
“In circumstances where the landlord and tenant function well together and there are no issues with regard to the rented property, the amendments are arguably unnecessary.”
In such instances, the application of the provisions of the Act should not be too problematic, says Radue.
“A final point our reader wanted clarification on is whether the Act also applies to agents.”
He says the definition of “landlord” includes a reference to his or her “duly authorised agent”.
“The Act states that ‘the obligations of the landlord will apply insofar as the mandate between landlord and tenant addresses that the agent is to carry out the duty of the landlord’.”
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